Baroness Kennedy of The Shaws: My Lords, perhaps I may start by saying that I support the Government. I am sure that that surprised your Lordships. That is to say, I support the Government's intentions. I think it is right that the criminal justice system should not be set in stone and that the Government should seek to make it more efficient, cost effective and more sensitive to the position of victims while protecting the rights of defendants. Those are things that I have argued for over the many long years of my practice within that system.

I also accept that steps should be taken to prevent abuse. As other noble Lords have said, there are people who delay the evil day and play the system. I do not accept that they do so in anything like the numbers that have been suggested. Some people plead guilty in

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the Crown Court because they have been over-charged in the first place, and it is only by then that the Crown have had the opportunity of considering all the evidence and accepting a reduced plea.

I agree that the aims of the Bill are laudable. The reason I oppose it and the reason I support the amendment--which I do with some pain in my heart--is an issue of principle. I believe that the impact of the Bill will be socially divisive and discriminatory. Other noble Lords have spoken to this and I do not intend repeating what I have said on previous occasions in the House. The Bill removes an important citizen's right.

We have not discussed today the important way in which the number of jury trials will be reduced by the Bill. Jury trials operate as a very awe-inspiring act of citizen participation. We should not underestimate how important is that engagement in the system by citizens in maintaining faith and in strengthening our society.

On 4th January I took my children to the Dome. For those of your Lordships who have not yet been there, I can inform you that there is a zone in it called "Self Portrait". It contains wonderful sculptures by Gerald Scarfe and lauds the great strength of the British people. It speaks about our creativity, our sense of humour, our inventiveness and our tolerance. It speaks about our sense of fair play; about how we invented the jury system and how that is the finest way of determining the guilt or innocence of an accused person. It also lauds the fact that we exported it to rather a large part of the world. So it is with a sad heart that I see any encroachment on that, particularly in the form taken in the Bill.

I should emphasise that this is not a denigration of magistrates. Many noble Lords have been, or are magistrates, who fulfil that role with the greatest of care and commitment. But the Bill puts magistrates into an invidious position where they, rather than the citizen, pick and choose those who are deserving of trial. Trial then becomes a privilege--and those who come before the courts have to be deemed worthy or unworthy of that privilege. It allows for subjective assessments. As soon as we have those, we know that there is a potential for prejudice to creep in and the possibility--even if it is not real--of concern by persons that they are being discriminated against.

That is the worrying aspect of this piece of legislation. That is what makes it different from every other change to the jury system which has taken place. Rich or poor, black or white, everyone was treated in the same way, not as we have here.

I wish to add two things which have not been mentioned in the debate: first, the race issue and the concern about minorities. These subjects excite much concern when I discuss them with the general public--not only with lawyers but with people in community groups and in gatherings where concerns about racism are very real. They feel that, although the research has been published, there has not been adequate consideration of other research which could be examined. For example, a long-term study is being conducted in Leicester. I am told that Leicester

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Magistrates' Court has completed that report. It has not been published because of a lack of resources, but the Home Office has been given the results of that work, which addresses specifically whether there are any discrepancies in the way in which black and white people are dealt with. However, we have not seen anything of that work to help us in our considerations tonight.

Work has also been done by the Commission for Racial Equality on discrimination in the Irish community. I wish to mention that because I have raised the matter in the past and I had to search for support for my concern that if you looked at Irish people, who considered that they too might be discriminated against in the system, out of the white component, you might find that the difference between black and white was much more marked. In the report published in 1997 on discrimination in the Irish community, reference was made to various different pieces of research which indicate that there might well be similar discrimination against the Irish community in relation to stop and search, search of vehicles, charges following a stop and search, bail, remand and on ultimate sentencing. If we examined that kind of research and conducted more of it, we would be better assisted in knowing whether there is no discrimination at all within the system. I should like to ask the Home Office to undertake further research before it makes a decision and puts this kind of proposal before the House.

My noble friend Lord Lipsey mentioned reform of the magistrates' court and others have mentioned discrepancies in sentencing. An important review of the criminal justice system is currently being conducted by Lord Justice Auld, a fine judge. It is likely to report later this year. The inquiry is examining both the Crown Court and the magistrates' court. Would it not be useful to wait and see the results of his inquiry before leaping to this legislation?

Other things could be done here. After the Royal Commission reported and expressed concern about the issue of hybrid offences, an administrative change was introduced which meant that there would be plea before venue. I shall explain. In the past you were asked where you wanted to be tried before you were asked whether you were pleading guilty or not guilty. As a result, people would often say, "I want to go to the Crown Court". So off they went to the Crown Court, not having been asked the second question on their plea. By simply inverting those questions, it has been found that the number of people going to the Crown Court and electing for trial by jury has halved. A very simple administrative change has brought about an extraordinary reduction. I suggest that other administrative changes could be made that would bring about the same effect for the Government.

If some people are abusing the system because they want to spend Christmas at home before going off to serve their sentences, it should be made clear to them in the magistrates' court, at the point of electing, that

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they will be penalised if they are found to be abusing the system. Ways can be found of creating sticks and carrots here that would achieve the same ends.

If we want to ensure that victims are well treated within the system, for which I have argued for many years, we could create a system of fast-tracking that would provide a much more effective way of having such cases heard. Soon after coming to this House, I suggested to the noble and learned Lord the Lord Chancellor that it might be worth considering the introduction of a national courts administrator--an inspector of courts--who could look at the failings of the system in the administration of justice and find ways of making it more effective. That would achieve the same end as the Government are seeking in this legislation.

Finally, speaking as a Scot, we have seen the ultimate sleight of hand in the suggestion that because Scotland has this system, why should not England? That is a strange position to take when we have just completed devolution and the Scots are proudly celebrating their distinctive cultural and legal systems. Should we not take pride in the systems practised south of the Border? Law is cultural. That is why I am concerned when discussions turn to harmonisation across the board in Europe. I would say that our system is very much our own system and we cannot cherry-pick those elements that we like of another system because each system fits together in a holistic way. In Scotland, the procurator fiscal decides whether someone will have a trial by jury, and so to look at that system and merely to say that that is how it is done there is to fail properly to examine the whole of the Scottish system and how it works. In Scotland the trial is always held before the judge--the sheriff--on these hybrid offences. He sits with or without a jury as determined by the procurator fiscal, who has full knowledge of the person's convictions. However, the judge has only limited powers when dealing with a case in a summary fashion. There is no committal for sentence and the maximum penalty for one set of complaints is three months. That is a very different system and does not compare like with like. Simply cherry-picking is not acceptable, and if we suggested such a course in Europe, it would be bitterly resented.

This is an issue of principle. It is not about trading off. The amendment has been put in this form because, although we would have wanted to find another way, there is no alternative course. The Bill is wrong in principle and that is why it is opposed even by those who are friends of the Government.

6 p.m.

Lord Thomas of Gresford: The matter that has most struck me in the debate this afternoon was the anecdote of the noble and learned Lord the Lord Chief Justice, Lord Bingham. He referred to his experience of going to a Crown Court and being faced with a long list of defendants who had elected for trial. He told us that most of them pleaded guilty in the face of the Lord Chief Justice. However, there was one who was, as the noble and learned Lord described, of the weakest intellect and elderly, who, in the face of the Lord Chief

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Justice, wanted to have his trial. What we object to in the Bill is that that is the kind of person--60 convictions before him--who the magistrate would have insisted, under the provisions of the Bill, should have his case heard before magistrates. That man, perhaps the weakest person in our society, will be the person for whom the justice of a trial will be denied.

I do not accept it, but there may be some merit in declaring that all shoplifting cases are too expensive for jury trials and so should be abolished for everyone. However, it is wrong to abolish them for the elderly person who is weak of intellect. That is not the way in which the system of justice in our country should be conducted.

The noble and learned Lord the Lord Chief Justice and the Attorney-General have entirely misconceived our fundamental objection to the Bill. Indeed, the noble Earl, Lord Onslow, struck the target absolutely accurately. The objection is not that a magistrate will make the determinative choice of venue. It makes no difference whether that is undertaken by a magistrate or a Crown Court judge. The objection is to the abolition of the right of a defendant to choose whether his case is heard before a jury, a bench of magistrates or a single stipendiary, based upon a value judgment as to his worth. The question being asked is: what kind of position in life does he need to protect? This Bill creates a new privilege to go along with the mortgage, the house, the car and the job. We should not divide our society in that way.

The noble and learned Lord the Lord Chief Justice and the noble and learned Lord the Attorney-General tell us that they have changed their minds on this issue for one reason--that there will be a right of appeal to a Crown Court judge. That makes absolutely no difference to the principle to which we are referring. The same criteria are to be applied. During the Second Reading debate, in answer to a question that I put to him, the noble and learned Lord the Attorney-General anticipated,

"something not dissimilar to the bail appeal to the Crown Court, where it is normally substantially a paper appeal, but oral representation is allowed where appropriate".--[Official Report, 2/12/99; col. 999.]

What that means, to those of us who have some experience of appeals to the Crown Court in bail applications, is that the two representatives of either side go into the judge's chambers, in private, with a file each. The defendant is not there. He does not hear what is said about his reputation and about his livelihood. It is all done away from him. It is a five minute hearing. The door then opens, the decision is made, and no doubt, in the vast majority of cases, the Government will expect that the Crown Court judge, using those same criteria of reputation and livelihood, will rubber stamp the decision previously taken by the magistrates.

So many points have been covered by your Lordships that perhaps the Committee will forgive me if I mention only one or two. Reference was made to the question of cost. The alleged savings in the Home Office flows and costs model operate on an assumption that the magistrates will take to

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themselves three-quarters of the 18,500 cases where the defendant currently elects to go to the Crown Court. That is the basis on which the Government say there will be a net saving of £39.5 million to the courts' budget.

It is a complete assumption. Who knows whether the magistrates will decide in three-quarters of the cases or in 95 per cent of the cases that the matter should be dealt with by magistrates and not in the Crown Court, or vice versa? One cannot compare the average cost of Crown Court trials, which reflect the costs of murder cases, fraud and conspiracy--all long cases--with the cost of average magistrates' court cases where so many cases go through that the average cost is far lower. What is happening is that the most expensive cases in the magistrates' court will be the each-way cases that are sent to them.

The second assumption is that the magistrate's decision at trial will be accepted; that is to say, if he finds the defendant guilty, that is the end of it. There will be no further appeal. But that is not the case. It may be that the defendant will be committed for sentence; it may be that he will exercise his unbounded right to have a completely new hearing in front of a Crown Court judge with two magistrates. So, as has been said in the debate, the savings are based on assumptions which simply will not be carried out.

The third assumption is that £66 million will be saved from prison costs as a result of shorter custodial sentences passed in the magistrates' court. That figure is based on research which is now 10 years out of date. I agree entirely with what was said by the noble Lord, Lord Alexander of Weedon. How can it be right in principle that there is such a disparity in sentencing between the Crown Court and the magistrates? A person should not in principle receive a higher sentence through the exercise of his right--his right--to jury trial.

If this Bill or anything like it becomes law, I can see the following happening. Just as there is pressure on magistrates to refuse applications for jury trial to come within the projected guidelines for cost savings, so there will be pressure on Parliament within a very short time to increase the sentencing powers of magistrates to avoid the expense of committing a convicted person to the Crown Court for sentencing. Within a couple of years I guarantee that the powers of the magistrates will be increased from six months to two years, or perhaps even three years in a situation like that.

Much has been made during the debate of the right to election first arising under the Criminal Justice Act 1855. That is a complete misunderstanding. Prior to that Act, all felonies were tried before a jury at assizes. The purpose of that Act may have been to ensure that magistrates dealt with the bulk of cases, but the age-old right to be tried by a jury was preserved by the requirement that the accused's consent was required to a hearing before the magistrates. The legislation did not give him the right to elect for trial by jury; he already had that right. It simply gave him the protection of consenting to a trial before magistrates where the sentence would be less. It is ironic that a

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provision introduced in order to give a defendant the chance of a disposal before the magistrates with a lesser sentence is now being used as a precedent for reducing costs.

It is said that defendants abuse their rights. I do not see how one can abuse a right simply by exercising it. That is a novel concept. Nor can one start from the basis that all those who choose to go for trial are guilty. That seems to be behind so much of what has been said by those who are in favour of the Bill. More abuse of lawyers comes from Mr Straw. Comments have already been made about that. I tried to think, "Am I a Hampstead liberal?" For two months in 1961, when I was studying to be a solicitor, I did live in Belsize Park. I had aspirations even there--the foothills of Hampstead. Then I wondered, "'Woolly liberals', was that in some way a reference to my Welsh ancestry?" I thought, "Surely the Home Secretary cannot mean that because he would have very much a woolly New Labour Attorney-General", who may be replying to the debate.

Those of us who have practical, hands-on, daily experience of the courts see defendants not as outcomes, not as disposals, not as statistics, but as people, sometimes with families, with very human problems in a society which so often let them down, laid them open to abuse and to deprivation, and failed to give them the skills, the training and the jobs that would enable them to survive and make something of their lives. I once thought that the Labour Party was concerned about those people. I once thought that that was what it had as a principle. But New Labour is a very different proposition. It accepts a total reverse of principle; it accepts the creation and not the abolition of privilege which we on these Benches have fought all our lives; and it accepts money before justice and the substitution of abuse for argument. It really is very sad.